Vata-Meyer v Commonwealth of Australia
[2014] FCCA 463
•10 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VATA-MEYER v COMMONWEALTH OF AUSTRALIA & ORS | [2014] FCCA 463 |
| Catchwords: HUMAN RIGHTS – Racial discrimination – alleged discrimination in conditions of work afforded to the applicant – inappropriate comments made at an office function – complaints made – whether the making of the comments, the handling of the complaints and other work arrangements were discriminatory considered. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO |
| Australian Medical Council & Ors v Wilson (1996) 68 FCR 46 Gama v Qantas Airways [2006] FMCA 1767 Qantas Airways Limited v Gama (2008) 167 FCR 537 |
| Applicant: | EDNA VATA-MEYER |
| First Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS) |
| Second Respondent: | ANGUS LEE |
| Third Respondent: | LISA PAUL |
| Fourth Respondent: | MARGARET LEGGETT |
| Fifth Respondent: | BEN WYERS |
| Sixth Respondent: | VICKI RUNDLE |
| Seventh Respondent: | JAMES HALLIGAN |
| Eighth Respondent: | JENNIFER ROYLANCE |
| File Number: | CAG 84 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 11-13 March 2014 |
| Delivered at: | Canberra |
| Delivered on: | 10 September 2014 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Seck |
| Solicitors for the Respondents: | Ashurst Australia |
ORDERS
The application filed on 2 November 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 84 of 2012
| EDNA VATA-MEYER |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS) |
First Respondent
ANGUS LEE
Second Respondent
LISA PAUL
Third Respondent
MARGARET LEGGETT
Fourth Respondent
BEN WYERS
Fifth Respondent
VICKI RUNDLE
Sixth Respondent
JAMES HALLIGAN
Seventh Respondent
JENNIFER ROYLANCE
Eighth Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 2 November 2012, the applicant (Ms Vata-Meyer) seeks relief against the Commonwealth of Australia, represented by the Department of Education, Employment and Workplace Relations (DEEWR) and seven individual respondents in that Department. The proceedings are brought pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) following the termination of a complaint made by Ms Vata-Meyer under that Act on 5 September 2012. Ms Vata-Meyer’s complaint was considered under ss.9, 15 and 18A of the Racial Discrimination Act 1975 (Cth) (RDA) and was terminated on the basis that there was no reasonable prospect of the matter being settled by conciliation.
In these proceedings, Ms Vata-Meyer claims that the individual respondents each engaged in unlawful racial discrimination against her, contrary to s.9 of the RDA and that the Commonwealth is vicariously liable for the unlawful acts of the individual respondents pursuant to s.18A of the RDA. In particular, Ms Vata-Meyer claims that the individual respondents engaged in unlawful discrimination against her in the conditions of work afforded to her, contrary to s.15(1) of the RDA.
Ms Vata-Meyer seeks relief in the form of declarations, an order for her redeployment to another department within the Australian public service at a certain level, compensation, a written apology from each of the respondents, an order that the Commonwealth require the individual respondents to undergo anti-discrimination, anti-bullying and harassment training and costs.
The proceedings are resisted by the respondents who deny the alleged breaches of the RDA and certain factual allegations made by Ms Vata-Meyer. The Commonwealth denies any vicarious liability in any event. Other aspects of the proceedings involving occupational health and safety, workplace discrimination issues and alleged negligence and breach of contract were not formally withdrawn but were ultimately not pursued.
Judge Neville of this Court made orders for mediation and other procedural orders in the case, but the matter did not resolve.
The third respondent is Ms Lisa Paul, the Secretary of DEEWR. On 19 August 2013 she applied to be removed as a respondent. That Application in a Case was opposed by Ms Vata-Meyer and I dealt with it at the outset of the trial of this matter on 11 March 2014. I dismissed the Application in a Case because the evidence disclosed that Ms Vata-Meyer had sought to involve Ms Paul in her complaints, and the process by which the complaints were dealt with was an issue in the proceedings.
The evidence and submissions
Ms Vata-Meyer relies upon her own affidavit made on 2 September 2013 upon which she was cross-examined.
The respondents rely upon the following affidavits:
a)the affidavit of Margaret Anne Leggett made on 17 December 2013;
b)the affidavit of Jennifer Anne Roylance made on 17 December 2013;
c)the affidavit of Angus Malcolm Lee made on 17 December 2013;
d)the affidavit of Vicki Denise Rundle made on 25 February 2014;
e)the affidavit of James Sebastian Halligan made on 17 December 2013; and
f)the affidavit of Benjamin Wyers made on 17 December 2013.
Each of those deponents were cross-examined on their affidavits.
The Secretary, Ms Paul, did not give evidence.
The parties made oral submissions at the trial of the matter.
Consideration
The uncontroversial facts in this matter are as follows. In February 2010, Ms Vata-Meyer commenced employment as a graduate in DEEWR’s graduate programme as part of the Australian Public Service (APS) Indigenous Graduate Recruitment Programme. There was a delay in Ms Vata-Meyer commencing duties as she was granted leave without pay for a year to resolve personal issues prior to her permanent relocation to Canberra from North Queensland. Ms Vata-Meyer commenced duties in February 2011.
The graduate programme required Ms Vata-Meyer to undertake several rotations in employment. The first rotation ran from February 2011 to June 2011. The second rotation commenced in July 2011 and ran to December 2011[1].
[1] affidavit of Margaret Leggett at [5]-[6]
On 14 July 2011 Ms Leggett asked Ms Vata-Meyer to complete two tasks: a table comparing indigenous work plans, and a brief paper[2].
[2] affidavit of Margaret Leggett at [29]-[34]
On 15 or 16 August 2011 Ms Vata-Meyer had a two hour meeting with her then supervisor, Ms Roylance, to discuss a report she had produced. Ms Vata-Meyer alleges that the conduct of Ms Roylance in this meeting constituted racial discrimination.
On 18 August 2011 Ms Leggett informed Ms Vata-Meyer that she would be moved to the Enterprise Bargaining Team of DEEWR[3].
[3] affidavit of Margaret Leggett at [39]
Ms Vata-Meyer made a request for financial support to attend a two day workshop in Queensland in September 2011 relating to indigenous employment retention strategies, which was an externally provided course aimed at employers. That request was refused on 12 or 13 September 2011[4].
[4] affidavit of James Halligan at [12]-[15] and affidavit of Margaret Leggett at [61]
On 28 September 2011, in the presence of Ms Vata-Meyer and other team members, Mr Lee allegedly used the terms “black babies”, “Michael Jackson” and “Coon cheese”. Mr Lee denies using the term “Michael Jackson” but admits that he used the other terms[5]. The following day Ms Leggett informed Ms Vata-Meyer that she would move to a new workstation closer to the Enterprise Bargaining team. On the same day Ms Vata-Meyer informed Ms Leggett about the incident with Mr Lee on 28 September. Ms Leggett met with Mr Lee to discuss the incident and he subsequently apologised to Ms Vata-Meyer and to another indigenous employee, Ms Kasey Cloudy. Mr Lee reported to Ms Leggett that his apologies were accepted. Ms Leggett also met with Ms Cloudy who informed her that her concerns about the incident had been addressed and Mr Lee’s apology accepted[6].
[5] affidavit of Angus Lee at [5]-[12]; affidavit of Margaret Leggett at [40]-[41] and affidavit of Jennifer Roylance at[ [28]-[29]
[6] affidavit of Margaret Leggett at [47]-[59]
On 4 October 2011 Ms Vata-Meyer wrote to the Secretary, Ms Paul, making a complaint regarding Mr Lee’s remarks and the handling of her complaint by DEEWR[7].
[7] affidavit of Vicki Rundle at [7]-[8] and affidavit of Benjamin Wyers at [10]-[12]
On 7 October 2011 Mr Wyers met with Ms Vata-Meyer and Mr Ralph Lahey (Ms Vata-Meyer’s support person) where Mr Wyers provided a copy of Ms Vata-Meyer’s complaint to Ms Leggett and Mr Lee and asked them to respond in writing. Mr Wyers also met with Mr Lee and counselled him on his poor judgement and naivety in relation to the events of 28 September 2011[8].
[8] affidavit of Benjamin Wyers at [13]-[16]
Mr Lee responded in writing to Mr Wyers regarding Ms Vata-Meyer’s complaint on 23 October 2011[9].
[9] affidavit of Benjamin Wyers at [18]-[23]
On 31 October 2011 Ms Leggett provided an email response to Mr Wyers regarding Ms Vata-Meyer’s complaint, along with file notes of her discussions with Ms Vata-Meyers, Mr Lee and Ms Cloudy prepared on 29 September 2011[10].
[10] affidavit of Margaret Leggett at [57]-[59] and affidavit of Benjamin Wyers at [24]-[26]
Mr Wyers spoke to Ms Vata-Meyer about the outcome of his investigation on 4 November 2011[11].
[11] affidavit of Benjamin Wyers at [30]-[33]
On 15 November 2011 Ms Vata-Meyer attended the first half of a mandatory full day workshop called “Enhancing Your Performance”. Her absence from the afternoon session was brought to the attention of Ms Peta Power who was the manager of the graduate programme[12].
[12] affidavit of James Halligan at [18]-[20] and affidavit of Margaret Leggett at [62]
On 16 November 2011 Ms Vata-Meyer attended a medical appointment for which she later produced a medical certificate[13].
[13] affidavit of James Halligan at [18]-[20]
On 21 November 2011 Ms Vata-Meyer had a conversation with Ms Power regarding her absence from the “Enhancing Your Performance” workshop. Ms Vata-Meyer disclosed that she chose an afternoon flight in preference to an evening flight from the workshop due to financial considerations. Ms Power requested a medical certificate from Ms Vata-Meyer. Ms Vata-Meyer sent an email at 2.25pm to Ms Power summarising the conversation and follow up action[14].
[14] affidavit of James Halligan at [21]
On the following day Ms Vata-Meyer had a follow up conversation with Ms Power (in the presence of Mr Halligan) regarding the medical certificate. Ms Power sent an email to Ms Vata-Meyer stating that if Ms Vata-Meyer provided details of the graduates alleged to have been absent from the afternoon session of the workshop she would investigate[15].
[15] affidavit of James Halligan at [22]-[23]
On 22 November 2011 Ms Vata-Meyer wrote to Ms Paul regarding the 7 October 2011 meeting with Mr Wyers and complained about the lack of response to her 4 October 2011 complaint[16].
[16] affidavit of Benjamin Wyers at [34]-[40]
On 24 November 2011 Ms Paul sent an email to Ms Vata-Meyer regarding her complaint of 22 November 2011[17].
[17] affidavit of Benjamin Wyers at [39]
On 28 November 2011 Ms Vata-Meyer wrote to Ms Paul alleging racial discrimination, workplace bullying and harassment and detailing the events of 21-23 November 2011. Ms Vata-Meyer also complained of a “lack of disciplinary action from management at a local level”[18].
[18] affidavit of Benjamin Wyers at [41]-[42]
On 9 December 2011 Ms Vata-Meyer was scheduled to provide a “hand over report” to Mr Halligan. Mr Halligan did not attend the meeting[19].
[19] affidavit of James Halligan at [31] and affidavit of Margaret Leggett at [64]-[67]
On either 9 December 2011 (or 18 December 2011 according to Ms Vata-Meyer), Ms Paul wrote to Ms Vata-Meyer in response to her complaint of 28 November 2011[20].
[20] affidavit of Benjamin Wyers at [48]-[49]
On 12 December 2011 Ms Vata-Meyer cleared her desk in the belief that she was to return to her “home group” after finishing her graduate rotations. She was stopped by Ms Julie Goode. Subsequently, there was a meeting between Ms Vata-Meyer and Ms Power and Ms Rundle (group manager of the People and Organisational Development group) to determine where Ms Vata-Meyer was to be placed. There was a further meeting between Ms Vata-Meyer, Ms Power, Ms Rundle and Mr Wyers to resolve the apparent confusion. Ms Vata-Meyer at that meeting raised her complaints regarding the incident of 28 September 2011. Mr Wyers, in relation to the discussion about Mr Vata-Meyer’s placement is alleged to have said “No, the whole [team] does not want her here. She’s got to go”. Ms Vata-Meyer advised she would remain in the People and Organisational Development group until a suitable placement was found for her[21].
[21] affidavit of James Halligan at [32]-[34] and affidavit of Benjamin Wyers at [63]
On 19 December 2011 Mr Wyers met with Ms Vata-Meyer, Mr Lahey (Ms Vata-Meyer’s support person) and Ms Rundle. During the meeting Ms Rundle agreed to review the responses of Mr Lee and Ms Leggett to Ms Vata-Meyer’s complaint about them and to satisfy herself that Ms Leggett and Mr Wyers had treated the issues with the seriousness that they deserved and that Mr Lee’s remorse was sincere. She also agreed to seek a work placement for Ms Vata-Meyer in an alternative team and to approach the Secretary (Ms Paul) regarding a request for a written apology on behalf of the Department[22].
[22] affidavit of Benjamin Wyers at [43]-[47] and [50]-[62] and affidavit of Vicki Rundle at [13]-[15]
Mr Lahey had concerns about this meeting and emailed Mr Wyers about them.
On 24 January 2012 there were email exchanges between Ms Vata-Meyer and Mr Halligan regarding an annual report assessor training request[23].
[23] affidavit of James Halligan at [26]-[30] and affidavit of Margaret Leggett at [63]
On 6 February 2012 Ms Vata-Meyer sent a final letter of complaint to Ms Paul[24].
[24] affidavit of Benjamin Wyers at [76] and affidavit of Vicki Rundle at [16]
In the same day Ms Rundle informed Ms Vata-Meyer that DEEWR was attempting to arrange a new placement for her[25].
[25] affidavit of Benjamin Wyers at [77] and affidavit of Vicki Rundle at [17]
On 13 February 2012 Ms Rundle advised Ms Vata-Meyer that she had obtained a placement for her in the Employee Entitlements branch[26].
[26] affidavit of Vicki Rundle at [17]
On 15 February 2012 Ms Vata-Meyer wrote to Ms Rundle requesting a meeting with her[27].
[27] affidavit of Vicki Rundle at [17]
On 1 March 2012 Ms Rundle informed Ms Vata-Meyer that she was arranging a meeting with the Secretary, Ms Paul[28].
[28] affidavit of Vicki Rundle at [17]
On 3 April 2012 Ms Vata-Meyer lodged a complaint with the Australian Human Rights Commission which attached her letter to Ms Paul dated 22 November 2011 and her letter to Ms Paul dated 28 November 2011.
On 11 April 2012 Ms Vata-Meyer cancelled a scheduled meeting with Ms Paul[29].
[29] affidavit of Vicki Rundle at [18]-[19]
A further scheduled meeting between Ms Vata-Meyer and Ms Paul was cancelled on 3 May 2012[30].
[30] affidavit of Vicki Rundle at [20]-[21]
Ms Vata-Meyer was a passionate and articulate advocate for her case. She was self-represented at the trial of the matter but had been legally represented at the outset of the proceedings. The application was prepared by her then solicitors and it is important to note that while Ms Vata-Meyer alleges racial discrimination, she does not claim racial vilification. This probably reflects the limitation in s.18C of the RDA which requires that to be actionable, racial vilification must occur otherwise than in private. There would have been a question if such a claim had been raised whether the workplace was a private location.
It is also important to note that the recollection of Ms Vata-Meyer and those of other witnesses about what was said at particular times and who was present is not entirely consistent. As I explained to Ms Vata-Meyer in the course of oral argument, that does not mean that anyone was untruthful in their evidence. Indeed, there was a high degree of consistency in the evidence of all parties. As I pointed out to Ms Vata-Meyer, human memory is inherently unreliable. For one person who has not had an emotional involvement in an issue, their recall may be limited. For another person for whom the incident is very significant in their lives, their recall may be very clear but it is nevertheless based upon their perception, which may not necessarily be factually accurate. In this case it is not, in my view, necessary to reconcile inconsistencies in the recall of matters of detail. The essential events are not disputed. The case turns upon the legal significance of those events in terms of the alleged breaches of the RDA.
Ms Vata-Meyer’s claims
Ms Vata-Meyer makes the following claims. First, that on or about 16 August 2011 at her meeting with Ms Roylance, Ms Roylance verbally insulted, humiliated, harassed and intimidated Ms Vata-Meyer on the basis of her race, colour, descent or national or ethnic origin.
Secondly, Ms Vata-Meyer claims that between 18 August 2011 and 9 December 2011, Ms Leggett, Mr Halligan and Ms Roylance engaged in conduct that humiliated, harassed and intimidated Ms Vata-Meyer on the same bases.
Thirdly, Ms Vata-Meyer claims that on or about 28 September 2011, Mr Lee verbally insulted, humiliated and harassed Ms Vata-Meyer on the basis of her race, colour, descent or national or ethnic origin and that Ms Leggett condoned or acquiesced in the unlawful discriminatory conduct of Mr Lee in that she took no action to report the matter to the Department (including Ms Paul).
Ms Vata-Meyer also claims that on or about 7 October 2011 she met with Mr Wyers in his capacity as Branch Manager, People, Policy and Performance Branch, who accepted her allegations relating to Mr Lee.
Fourthly, Ms Vata-Meyer claims that between September 2011 to April 2012, Ms Paul, Ms Leggett, Mr Wyers, Ms Rundle and Mr Halligan engaged in conduct that humiliated, harassed and intimidated her on the basis of her race, colour, descent or national or ethnic origin by failing to adequately investigate and manage Ms Vata-Meyer’s complaint about the conduct of Mr Lee.
Ms Vata-Meyer claims that the Commonwealth is liable for the conduct of its officers because it failed to take any adequate steps to prevent the unlawful discriminatory conduct and that it failed to investigate the acts of Mr Lee or to take sufficient action to ensure he had been properly trained in particular, in relation to workplace anti-discrimination, bullying and harassment.
Ms Vata-Meyer also claims compensation against the Commonwealth for its failure to afford non-discriminatory conditions of work. She alleges in particular that Mr Wyers accepted an apology from Mr Lee on behalf of Ms Vata-Meyer without her authority or approval and that Mr Wyers and Ms Rundle attempted to arrange a new placement for Ms Vata-Meyer.
Ms Vata-Meyer’s claim is a claim of direct racial discrimination. Section 9(1) of the RDA provides as follows:
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Ms Vata-Meyer also relies upon s.15(1)(b) of the RDA which provides:
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
…
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; …
It is clear from s.6 of the RDA that it binds the Crown in right of the Commonwealth. Hence, there is no issue that the Commonwealth is subjected to the RDA. It is also clear from s.3(3) of the RDA that a refusal or failure to do an act is deemed to be the doing of an act and a reference in the RDA to an act includes a reference to such a refusal or failure. Further, s.18 provides that where an act is done for two or more reasons and one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act), then the act is taken to be done for that reason. Pursuant to s.18A of the RDA, the Commonwealth would be liable for the unlawful acts of its officers in the performance of their duties unless it were established that it took all reasonable steps to prevent the officer from doing the act.
Relevant legal principles
The reference in s.9(1) of the RDA to a “distinction, exclusion, restriction or preference” is different from the words “less favourable treatment” under other Federal anti-discrimination legislation. Nevertheless, I accept that the section calls for a comparison between someone who has a particular characteristic, such as race, and someone without that characteristic. An act proscribed by s.9(1) need not be intentional. It is sufficient that it has the proscribed effect. However, the effect must be a nullifying or impairing of a human right or fundamental freedom in the political, economic, social, cultural or other field of public life. Relevant fundamental freedoms or human rights may be found in the United Nations Convention on Human Rights or the International Covenant on Civil and Political Rights or elsewhere, provided that it is considered to be an inalienable right at law[31].
[31] see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70
Section 9 of the RDA was considered by the Full Federal Court in Australian Medical Council & Ors v Wilson[32]. It was accepted in that case that the words “equal footing” called for a comparison between two groups: one with the relevant characteristic and one without. The question was considered in more detail by the Federal Court in Baird & Ors v Queensland[33]. At [63] Allsop J (as his Honour then was) said:
For the same reasons, one does not read into s 9(1) the need to demonstrate a direct comparator or comparison. The primary judge appeared to require this in [138] in saying that there was no evidence that the Government calculated payments to other organisations using higher wage rates and that there was no suggestion that other grants were made at higher rates to facilitate higher payments to non-indigenous workers. The effectiveness of s 9(1) is not to be denied just because there is not in fact a directly comparable situation. Those suffering the disadvantage of discrimination may find themselves in circumstances quite unlike others more fortunate than they. Though, in this respect, it should be noted that the primary judge said in his reasons that he inferred that the Government was paying below-award wages to indigenous workers on the reserves which it administered: see [135] of his reasons set out at [36] above.
[32] (1996) 68 FCR 46
[33] (2006) 156 FCR 451
I take his Honour’s reference to the word “direct” to mean that the comparison need not be to with a real person or group of persons. The comparator can be hypothetical.
It is established that racist remarks may constitute racial discrimination under s.9(1) of the RDA[34]. That case (on appeal) established that where a remark critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race, then that linkage establishes both the distinction and its basis upon race. Depending upon the facts, that can have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. At [76]-[78] the Full Federal Court stated:
We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve “a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin ...” The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.
The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom ...” The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.
The learned magistrate having found the remarks were made, was satisfied that the making of them impaired Mr Gama’s enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from his workmates. He did not elaborate in his reasons the way in which these particular incidents could have had that effect. Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend upon the nature and circumstances of the remark. Occasional politically incorrect banter will be unlikely to have the requisite purpose or effect. The judgment is a matter of fact. The judgment which the learned magistrate made was open to him on the facts which he found. It did not involve a misconstruction of s 9(1). Appeal ground 2 therefore fails.
[34] see Gama v Qantas Airways [2006] FMCA 1767 and Qantas Airways Limited v Gama (2008) 167 FCR 537
Ms Vata-Meyer bears the onus of establishing that the RDA has been breached. Relevantly, s.140 of the Evidence Act 1995 (Cth) applies. The Full Federal Court in Sharma v Legal Aid[35] explained the principles to be employed in determining the standard of proof that must be met in a racial discrimination claim. At [40] the Court said:
It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.
[35] [2002] FCAFC 196
That statement was to some extent qualified by Branson J in Qantas Airways v Gama at [127]-[130] where her Honour said:
Briginshaw v Briginshaw, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) (“the Evidence Act”) which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows:
(1)in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 (“Neat Holdings”) at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...’.
(footnotes and citations omitted)
I went on at [66]-[67] to question the accuracy of certain judicial observations to the effect that in cases of a particular kind a “standard of proof above mere satisfaction on the balance of probabilities is appropriate” and suggested that in every case it was necessary to consider not only the nature of the case but also the nature of the particular fact in issue, of which proof is required, including its inherent gravity and unlikelihood.
It does not seem to me that the Full Court decision in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 is to be understood as adopting a different view from that which I expressed (with the agreement of Kenny J) in Employment Advocate v Williamson. As the Court noted in Sharma v Legal Aid (Qld) at [40], it was common ground at first instance in that matter “that the standard of proof for breaches of the RDA [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw v Briginshaw” and no contrary argument was put on the hearing of the appeal.
In a case of this nature, the drawing of inferences from the available evidence can present difficulties. For example, if it were established that the Commonwealth, through its officers, acted unreasonably, it would not necessarily follow that the action (or lack of action) was related to race. As the House of Lords found in Glasgow City Council v Zafar[36] the conduct of a hypothetical reasonable employer is not generally relevant to the determination of unfavourable treatment by reason of race. The alleged discriminator may or may not be a reasonable employer. An unreasonable employer may well treat all its employees in the same unsatisfactory way.
[36] [1997] 1WLR 1659 at page 1663
Ms Vata-Meyer, in order to succeed, must establish a connection between the impugned acts and her race. If there are innocent explanations which are consistent with the facts as established then she would be unable to do so. Thus, the mere failure to follow established practice and procedure in relation to a particular act does not establish that the act occurred because of race. Raphael FM (as his Honour then was) grappled with the issue of available inferences in Gama v Qantas. His Honour said at [5]-[9]:
I incorporate into these reasons the following discussion about the Briginshaw standard and the drawing of inferences in order to explain the law which I have used to guide me in making conclusions as to the standard of proof required, and as to whether any particular inference could be drawn. Having done that it should not be necessary to make further specific references to authority in each case where an inference is or is not drawn.
Law relating generally to the drawing of inferences
Brennan and McHugh JJ in G v H (1994) 124 ALR 353 defined an inference in the context of judicial decision-making as
“a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v. Osborne (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.”
An inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that “it is more probable that it exists than that it does not”: per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301. Where an applicant claims an inference should be drawn:
“There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. …the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action…to such practical certainty as would justify a conviction in a criminal prosecution.” As per Jordan CJ in Carr at (pp306-307).
The judgment in Carr was followed in the oft-cited High Court case Jones v Dunkel (1959) 101 CLR 298, where Kitto J states at [305]:
“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”
See also Peter Li v Joseph Eliezer (1997) (Unreported, NSW Supreme Court, 14516 of 1996; 1 May 1997) at [3]-[7].
The need for “a foundation of objective facts” was discussed by Muirhead J in Nominal Defendants v Owens (1978-79) 22 ALR 128 at [p.130], adopting the statements of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at [169]. Muirhead J goes on to cite with approval the dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]:
“…the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view. …A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.”
An inference will be a ‘matter of conjecture’ where the circumstances give rise to “conflicting inferences of equal probability”: Richards Evans & Co Ltd v Astley [1911] AC 674 as per Lord Robson at [687]. Lord Robson’s comments were approved in Luxton v Vines (1952) 85 CLR 352, cited with approval by Muirhead J in Owens at [132], where the plaintiff relied on inferences being drawn to establish both the circumstance and cause of his injury and the negligence which formed the substance of the complaint. The majority concluded that no inference could be drawn as the circumstances gave
“…rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference…can reasonably be made”,
given that for whatever explanation provided by the applicant for the accident,
“…reasons of equal sufficiency or insufficiency exist for other explanations.”
Luxton has since been approved: see, for example, Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133.
I accept, from his Honour’s observations, that in order to draw an inference the Court must be satisfied that it is more probable than not and the inference must follow from a given premise which is probably true and which is based on some syllogistic reasoning. That means that if there are conflicting inferences that can be drawn from the facts with equal degrees of probability then the Court should not draw any inference at all. Further, if there is a probable explanation for an action which is consistent with a non racial reason, then the Court could not draw an improbable inference that the act was done for a racial reason[37].
[37] see also Victoria v McKenna (1999) 140 IR 256
Resolution of the claims
The respondents concede that the strongest part of Ms Vata-Meyer’s case concerns the actions of Mr Lee at an afternoon tea with other employees of the Department on 28 September 2011. Mr Lee brought a packet of chocolate flavoured jelly babies known as “Chicos” to the afternoon tea and offered them to those at the afternoon tea (including Ms Vata-Meyer and Ms Cloudy, both of whom are Aboriginal) with the words, “here are some black babies”. It appears that his invitation was not taken up. It can reasonably be supposed that the act of inviting an Aboriginal person to eat “black babies” is likely to cause offence. It is plain from both the evidence of Ms Vata-Meyer and that of Mr Lee that Ms Vata-Meyer was offended. She returned the packet of Chicos to Mr Lee. Surprisingly, Mr Lee (as he concedes in his own evidence) made a second attempt to offer people “black babies” when he re-presented his packet of Chicos a short time later. Further, in response to a question from someone at the afternoon tea as to what sort of cheese he liked, Mr Lee responded “I just like plain old Coon cheese”.
Under cross-examination, Mr Lee impressed me as a remarkably unsophisticated man. I described him during the course of oral argument as “obtuse”.
It is possible that by making reference to “black babies” and “Coon cheese” Mr Lee was seeking to get a reaction from Ms Vata-Meyer. If so, he was successful. It is also possible that Mr Lee simply did not understand that his reference to “black babies” and “Coon cheese” might cause offence. That is what he asserted in his affidavit and maintained under cross-examination. Were it not for Mr Lee’s obvious lack of sophistication, I would have had difficulty accepting that explanation. However, I am willing to give him the benefit of the doubt on the basis that he is simply obtuse.
Even though unintended, a racially offensive remark may impair a person’s enjoyment of her right to work and to just and favourable conditions of work. There is little doubt, in my view, that an invitation to eat “black babies” is likely to offend an Aboriginal person. A statement of a preference for “Coon cheese” is of a different character. It is a well known and established brand of cheese and there is no necessary connection with race. The word “coon” has several meanings, only one of which is a racially pejorative one.
The evidence makes clear that Mr Lee was counselled about his remarks when Ms Vata-Meyer complained about them and that he apologised and showed genuine remorse when the offensive nature of his reference to “black babies” was explained to him. The Department acted promptly to deal with Ms Vata-Meyer’s complaint and the offensive conduct was not repeated. In my opinion, provided that the investigation and resolution of Ms Vata-Meyer’s complaint was adequate to the circumstances, the action of Mr Lee would not have impaired Ms Vata-Meyer’s enjoyment of her right to work. In that regard, I acknowledge the observations of the Full Federal Court in Gama at [76]-[78].
In the present case, Ms Vata-Meyer contends that the investigation of her complaints did not ensure her enjoyment of her right to work and just conditions of work as an Aboriginal person but further injured them. Ms Cloudy accepted Mr Lee’s apology and treated the matter as closed thereafter. Ms Vata-Meyer did not. When the matter was not resolved to her satisfaction, she sought to escalate her complaint.
There is a dispute of fact as to who was present and heard Mr Lee’s words. Ms Roylance conceded hearing one reference to “black babies” and I accept her evidence. Ms Leggett, while conceding that she was present for part of the afternoon tea, denies hearing the comments. The issue was drawn to her attention the following day by Ms Vata-Meyer and Ms Leggett acted immediately to deal with it. She undertook to speak to both Mr Lee and Ms Cloudy. In my view, her action was reasonable and appropriate to the circumstances. I accept her evidence that she did not hear the remarks at the time they were made. I do not accept Ms Vata-Meyer’s claim that Ms Leggett condoned or acquiesced in the conduct of Mr Lee by failing to take action.
Likewise, Ms Paul and Mr Wyers acted reasonably and appropriately. Ms Paul, as the Secretary of the Department, could not be expected to deal personally with every issue of concern arising between staff. She instructed Mr Wyers to investigate. Mr Wyers was responsible for counselling Mr Lee. The Department chose to deal with the matter informally, consistently with its policy of using informal measures in the first instance. Having regard to the circumstances generally, and Mr Lee’s prompt action in accepting criticism and apologising, I cannot say that the Department was wrong in failing to deal with the matter on a formal disciplinary basis.
I accept Mr Wyers’ evidence concerning his investigation and action. Mr Wyers spoke to Ms Vata-Meyer initially and asked her what outcome she wanted. Then Mr Wyers spoke to Mr Lee and to Ms Leggett. Mr Lee denied any intention to offend but once Ms Leggett had explained to him the connotation of his words, he apologised both to Ms Vata-Meyer and to Ms Cloudy. Although Ms Vata-Meyer doubts the sincerity of his apology, I accept that Mr Lee accepted culpability at a very early stage. Mr Wyers considered that Mr Lee’s remorse was sincere and genuine. He accepted that Mr Lee’s conduct had not been intentional and counselled Mr Lee, given the inappropriateness of his conduct. Mr Wyers prepared a file note of what he had done. When Ms Vata-Meyer continued to attempt to escalate her complaint to Ms Paul, Mr Wyers made a more formal statement of his findings.
Ms Paul was ultimately willing to meet Ms Vata-Meyer to discuss her concerns. The fact that such a meeting did not take place was not the fault of Ms Paul.
Ms Vata-Meyer’s complains that Mr Wyers acted improperly in accepting Mr Lee’s apology on her behalf. This is a simple misunderstanding. Mr Wyers gave evidence that he did no such thing. I accept his evidence. What Mr Wyers did was accept the genuineness of Mr Lee’s apology. He was entitled to make his own assessment on that issue.
I find that the action taken by the Department to deal with Ms Vata-Meyer’s complaint about the conduct of Mr Lee was reasonable and adequate and appropriate to the circumstances. That action should have ensured that Ms Vata-Meyer was not injured in the enjoyment of her work and in enjoying fair conditions of work as a consequence of the action of Mr Lee.
I reject Ms Vata-Meyer’s contention that the other actions taken by Departmental officers, about which she complains, had any connection to her race. It is not useful to debate whether those actions were fair or whether the Departmental officers involved could have handled the various circumstances better. The salient fact is that those actions were part of the ordinary administration of the Department and no inference is available that the actions taken were intended to or had the result of disadvantaging Ms Vata-Meyer because of her race. Indeed, the Departmental officers involved appear to have been motivated to assist Ms Vata-Meyer by seeking to ensure that she successfully completed her placements in the graduate recruitment programme.
Several events occurred before the incident involving Mr Lee. It follows that they could not have been affected by it. The action taken by Ms Leggett on 14 July 2011 and 18 August 2011 was in itself innocuous. The refusal of Ms Vata-Meyer’s request for funding to attend a two day workshop in September 2011 was explained on a rational basis.
The so called “dressing down” of Ms Vata-Meyer by Ms Roylance at their two hour meeting on 15 or 16 August 2011 has no racial connection. I accept Ms Roylance’s evidence about what occurred at that meeting. Ms Roylance was discussing two tasks with Ms Vata-Meyer and there was miscommunication between them. Ms Roylance made an observation that it seemed that she and Ms Vata-Meyer were “speaking different languages” but that simply reflected the miscommunication.
Conclusion
In the light of my findings above, I conclude that Ms Vata-Meyer has failed to establish any breach of the RDA by any of the respondents. I will accordingly order that Ms Vata-Meyer’s application filed on 2 November 2012 be dismissed.
I will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2014
0
13
4